HON. JEFFREY S. CHASE: Alimbaev v. Att’y Gen (3rd Cir.) Shows How BIA Is Willing To Overlook Rules To Avoid Political Threat to Existence — No Wonder Due Process Is No Longer The Vision Or Goal Of The Immigraton Courts! — Read My Latest “Mini-Essay:” TIME TO END THE “CHARADE OF QUASI-JUDICIAL INDEPENDENCE” AT THE BIA (With Credit to Peter Levinson)

https://www.jeffreyschase.com/blog/2017/10/5/3d-cir-rebukes-bia-for-troubling-erroneous-overreach

Here’s Jeffrey’s Blog:

“Oct 5 3d Cir. Rebukes BIA for Troubling, Erroneous Overreach

Alimbaev v. Att’y Gen. of U.S., No. 16-4313 (3d Cir. Sept. 25, 2017) opens with unusual language: “This disconcerting case, before our court for the second time, has a lengthy procedural history marked by confiict between the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ)…” The court observed that the case involved “troubling allegations that the Petitioner…relished watching terroristic videos, while apparently harboring anti-American sympathies.” But the court noted that the question before it was whether the BIA applied the correct legal standard for reviewing the IJ’s factual findings, which the court found necessary for “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.”

There is some history behind the correct legal standard mentioned by the circuit court. Prior to 2002, the BIA could review factual findings de novo, meaning it could substitute its own judgment as to whether the respondent was truthful or not for that of the immigration judge. In 2002, then attorney general John Ashcroft enacted procedural reforms which limited the scope of the Board’s review of factual findings to “clear error.” The new review standard meant that even if the Board strongly disagreed with the immigration judge’s fact finding, it could only reverse if it was left with the definite and firm conviction that a mistake had been made. The stated reason for the change was that the overwhelming majority of immigration decisions were correct. The actual motive for the change was more likely that the Board was seen as too liberal by Ashcroft; the new standard would therefore make it more difficult for the Board to reverse deportation orders based on the immigration judges’ finding that the respondent lacked credibility.

The following year, Ashcroft purged the Board of all of its more liberal members. The resulting conservative lean has not been offset by subsequent appointments, in spite of the fact that several of those appointments were made under the Obama administration. The Board regularly uses boilerplate language to affirm adverse credibility findings on the grounds that they do not meet the “clearly erroneous” standard. Furthermore, 2005 legislation provided immigration judges with a broader range of bases for credibility determinations, which again made it more difficult for the Board and the circuit courts to reverse on credibility grounds.

The provisions safeguarding an IJ’s credibility finding should apply equally to cases in which relief was granted, making it difficult for a conservative panel of the Board to reverse a grant of relief where the IJ found the respondent credible. Alimbaev was decided by an outstanding immigration judge, who rendered a fair, detailed, thoughtfully considered decision. Factoring in the REAL ID Act standards and the limited scope of review allowed, the Board should have affirmed the IJ’s decision, even if its members would have reached a different factual finding themselves. Instead, the Board panel ignored all of the above to wrongly reverse the IJ not once but three times.

The immigration judge heard the case twice, granting the respondent’s applications for relief each time. In his second decision, the IJ found the respondent’s testimony to be “candid, internally consistent, generally believable, and sufficiently detailed.” In reversing, the BIA turned to nitpicking, citing two small inconsistencies that the Third Circuit termed so “insignificant…that they would probably not, standing alone, justify an IJ making a general adverse credibility finding, much less justify the BIA in rejecting a positive credibility finding under a clear error standard.” The Court therefore concluded that the BIA substituted its own view for the permissible view of the IJ, which is exactly what the “clear error” standard of review is meant to prevent.

The Board cited two other dubious reasons for reversing. One, which the circuit court described as “also troubling,” involved a false insinuation by the Board that a computer containing evidence corroborating the claim that the respondent had viewed “terrorist activity” was found in his residence. In fact, the evidence established that the computer in question was not the respondents, but one located in a communal area of an apartment in which the respondent lived; according to the record, the respondent used the communal computer only on occasion to watch the news. In a footnote, the court noted that none of the videos found on the communal computer were training materials; several originated from the recognized news source Al Jazeera, and “that on the whole, the computer did not produce any direct or causal link suggesting that [they] espoused violence, such as email messages of a questionable nature.” The circuit court therefore remanded the record back to the BIA, with clear instructions to reconsider the discretionary factors “with due deference to the IJ’s factfinding before weighing the various positive and negative factors…”

The question remains as to why the BIA got this so wrong. One possibility is that as the case involved allegations that the respondent might have harbored terrorist sympathies, the Board members let emotion and prejudice take over (apparently three separate times, over a period of several years). If that’s the case, it demonstrates that 15 years after the Ashcroft purge, the one-sided composition of the Board’s members (with no more liberal viewpoints to provide balance) has resulted in a lack of objectivity and impartiality in its decision making. Unfortunately, the appointment of more diverse Board members seems extremely unlikely to happen under the present administration.

But I believe there is another possibility as well. 15 years later, the Board remains very cognizant of the purge and its causes. It is plausible that the Board made a determination that as a matter of self-preservation, it is preferable to be legally wrong than to be perceived as being “soft on terrorism.” If that is the case, there is no stronger argument of the need for an independent immigration court that would not be subject to the type of political pressures that would impact impartiality and fairness.

It also bears mention that unlike the Board, the immigration judge in this case faced the same pressures, yet did not let them prevent him from issuing an impartial, fair, and ultimately correct decision (in spite of having his first decision vacated and remanded by the Board). Unlike the BIA, whose members review decisions that have been drafted for them in a suburban office tower, immigration judges are on the front lines, addressing crippling case loads, being sent on short notice to remote border locations, and dealing with DHS attorneys who now, on orders from Washington, cannot exercise prosecutorial discretion, must raise unnecessary objections, reserve appeal on grants of relief, and oppose termination in deserving cases. Yet many of these judges continue to issue their decisions with impartiality and fairness. Their higher-ups in the Department of Justice should learn from their performance the true meaning of the “rule of law.”

Copyright 2017 Jeffrey S. Chase. All rights reserved.”

Reprinted With Permisison

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Here’s a link to my previously-published analysis of Alimbaev: http://wp.me/p8eeJm-1tX

 

TIME TO END THE “CHARADE OF QUASI-JUDICIAL INDEPENDENCE” AT THE BIA (With Credit to Peter Levinson)

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

The “grand experiment” of trying to have the BIA operate as an independent appellate court along the lines of a U.S. Court of Appeals ended with the advent of the Bush II Administration in 2001 and Ashcroft’s not too subtle suggestion that he wanted me out as BIA Chairman (presumably, the ”implied threat” was to transfer me to an SES “Hallwalker” position elsewhere in the DOJ if I didn’t cooperate. I cooperated and became a Board Member until he bounced me out of that job in 2003).

Since then, and particularly since the “final purge” in 2003, the BIA has operated as a “captive court” exhibiting a keen awareness of the “political climate” at the DOJ. Don’t rock the boat, avoid dissent, don’t focus too much on fairness or due process for immigrants, particularly if it might cause controversy, interfere with Administration Enforcement programs, or show up in a published precedent.

I agree with everything Jeffrey says. It’s totally demoralizing for U.S. Immigration Judges who are willing to “do the right thing” and stand up for due process and fairness for respondents when the BIA comes back with a disingenuous reversal, sometimes using canned language that doesn’t even have much to do with the actual case.

You should have seen the reaction of some of our former Judicial Law Clerks in Arlington (a bright bunch, without exception, who hadn’t been steeped in the “EOIR mystique”) when a specious reversal of an asylum, withholding, or CAT grant came back from the BIA, often “blowing away” a meticulously detailed well-analyzed written grant with shallow platitudes. One of them told me that once you figured out what panel it had gone to, you could pretty much predict the result. It had more to do with the personal philosophies of the Appellate Judges than it did with the law or due process or even the actual facts of the case. And, of course, nobody was left on the BIA to dissent.

And, as I have pointed out before, both the Bush and Obama Administrations went to great lengths to insure that no “boat rockers,” “independent thinkers” or “outside experts” were appointed to appellate judgeships at the BIA for the past 17 years. Just another obvious reason why the promise of impartiality, fairness, and due process from the U.S. Immigration Courts has been abandoned and replaced with a “mission oriented” emphasis on fulfilling Administration Enforcement objectives. In other words, insuring that a party in interest, the DHS, won’t have its credibility or policies unduly hampered by a truly independent Board and that the Office of Immigration Litigation will get the positions that it wants to defend in the Circuit Courts.

When is the last time you saw the BIA prefer the respondent’s interpretation to the DHS’s in interpreting an allegedly “ambiguous” statutory provision under the Chevron doctrine? Even in cases where the respondent invokes “heavy duty assistance” on its side, like for example the United Nations High Commissioner for Refugees in an asylum case, the BIA basically “blows them off” without meaningful consideration and finds the DHS position to be the “most reasonable.” For one of the most egregious examples in modern BIA history, see the insulting “short shrift” that the BIA gave to the well-articulated views of the UNHCR (who also had some Circuit Court law on its side) in Matter of  M-E-V-G-, 26 I&N Dec. 207, 248-49 (BIA 2014) (“We believe that our interpretation in Matter of S-E-G- and Matter of E-A-G-, as clarified, more accurately captures the concepts underlying the United States’ obligations under the Protocol and will ensure greater consistency in the interpretation of asylum claims under the Act.”)

The whole Chevron/Brand X concept is a joke, particularly as applied to the BIA. It’s high time for the Supremes to abandon it (something in which Justice Gorsuch showed some interest when he was on the 10th Circuit). If we’re going to have a politicized interpretation, better have it be from life-tenured, Presidentially-appointed, Senate-confirmed Article III Judges, who notwithstanding politics actually possess decisional independence, than from an administrative judge who is an employee of the Attorney General (as the DOJ always likes to remind Immigration Judges).

It’s also a powerful argument why the current “expensive charade” of an independent Immigration Court needs to be replaced by a truly independent Article I Court. Until that happens, the Article III Courts will be faced with more and more “life or death” decisions based on the prevailing political winds and institutional preservation rather than on Due Process and the rule of law.

PWS

10-05-17

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me.  It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case?  Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control.  Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say,  “Congress and President Trump will never go for it.  Nobody in the Washington ‘power curve’ could sell this idea.”  But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle.  His name is Jeff Sessions.  And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?”  Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service.  Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights.  Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me.  I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole.  Yes, there will always be a substantial minority of instances where people act against their best interests.  Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions.  He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views.  The former could be a problem for Sessions, however.  Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms?  Only time will tell.  But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan.  It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron  Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency.  Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission.  But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.”  The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations.  Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17